State attorney responds: Prescription drug records secure

Wednesday

Jun 19, 2013 at 6:44 PMJun 19, 2013 at 8:10 PM

State Attorney R.J. Larizza said his office has secured prescription drug records at the heart of a constitutional battle with a local attorney and is not going to distribute the information unless ordered by a court, according to a response Larizza's office filed.

FRANK FERNANDEZSTAFF WRITER

State Attorney R.J. Larizza said his office has secured prescription drug records at the heart of a constitutional battle with a local attorney and is not going to distribute the information unless ordered by a court, according to a response Larizza's office filed. But Larizza's response to Michael Lambert's request for a temporary injunction does not address the constitutionality of his office having the prescription drug records of what Lambert estimates are more than 3,300 Volusia County residents. Nearly all of them have not been charged with any crime in the investigation. Lambert has asked a judge for a temporary injunction ordering Larizza not to release the prescription drug records obtained from the Florida Prescription Drug Monitoring Program, which was formed to crack down on pill mills. The database has received more than 29,000 requests from 148 law enforcement agencies since it went into operation in 2011, according to the Department of Health. As of May 31, the database had denied 235 queries. The injunction also asks the court to order Larizza to secure all copies of those records, including those copies held by law enforcement. It also asks a judge to order Larizza to mail a certified letter to everyone whose records were listed. Lambert is pleased Larizza said he is safeguarding the records but prosecutors should not have them in the first place, said John Tanner, who is Lambert's attorney. And Larizza's office should not have given them to private defense attorneys, Tanner said. Law enforcement should not have had the records of the innocent people either, Tanner said. The prescription database needs judicial oversight, he said. “If the controls are so loose that 3,300 plus citizens' very private records can be in effect released to people that shouldn't have them then obviously the controls are not sufficient,” Tanner said. Each law enforcement agency appoints an administrator for that agency and then that administrator in turn approves other law enforcement officers within that organization who can make requests to the database, the Department of Health said in an email. There are currently 228 administrators and since the database began 691 law enforcement officers have received a user ID to make requests. On Wednesday, the Florida Department of Health announced it is working to tighten access to the database and will hold a workshop on the issue July 8. Among the changes being explored are: limiting the number of people who receive credentials to use the database, developing a system to disqualify users who improperly handle confidential information, creating a system to notify an agency's administrator when someone from that agency makes a request, and more clearly displaying penalties for improper disclosure. Lambert said in a phone interview that law enforcement and the Department of Health don't seem to understand the penalties are meant for them. “None of these agencies understand that the penalties exist for them — to punish them for violating the statute,” Lambert said. Larizza's response was filed by Assistant State Attorney Karen Foxman. It says that disks containing the prescription drug records were given to five attorneys in six cases as part of discovery. Larizza said one of those attorneys provided the disk to Lambert even though the disk was marked that it had confidential information and was not a public record. Lambert has said his name is among the 3,000 plus names on the disks. Larizza said in his response that once Lambert notified him about the issue prosecutors retrieved the five disks. Only one of the attorneys had viewed a disk, according to Larizza's response. “Since the records at issue were recovered by the State Attorney's Office, they are securely maintained and will not be distributed unless and until released by court order,” Larizza's response states. “Therefore, the plaintiff fails to establish the necessary legal element of irreparable harm.” Larizza's response also said the investigation began when some local pharmacies noticed fraudulent prescriptions. Four doctors were the victims of the fraudulent prescriptions over several years. The database was used to identify people who were not patients. Six people were arrested. Investigators also found 63 fake names being used and seven “innocent victims” whose identities were stolen by the people filing the false prescriptions. Lambert and his attorneys have said Florida's prescription drug monitoring database program violates the state's constitution, invades the privacy of residents and subjects them to unreasonable searches, according to an amended complaint filed Wednesday in Circuit Court in Volusia County. The American Civil Liberties Union is also looking into the issue and said it could file federal complaints with the Department of Justice and the Department of Health and Human Services related to the disclosure of the prescription information. The Florida Prescription Drug Monitoring Program was launched in 2011 to track drugs such as oxycodone and hydrocodone as well as other medications, including anti-anxiety drugs to sleeping pills. The database was designed to shut down pill mills and stop doctor shopping “Mr. Lambert isn't opposed to good law enforcement and protecting all of us from the dangers of drug abuse and pill mills but not at the price of turning over innocent citizens' prescription records to any law enforcement officer who makes a request,” Tanner said. “It's just too broad a net and too precious a right to give up.”